ASB injunctions – new guidance on ‘without notice’ applications

For social landlords, the ability to apply for an anti-social behaviour injunction pursuant to the Anti-social Behaviour Crime and Policing Act 2014 is an important one. Injunctions are an important part of the social landlord’s tools for controlling ASB, and are applied for by landlords across the country every day against tenants or third parties to control unacceptable behaviour. Injunctions were particularly useful in the early stages of the pandemic, when the Government imposed a blanket stay on most possession proceedings.

Usually, injunction applications are made ‘on notice’ with both parties having the chance to argue the case before the court decides whether to grant the injunction, and if so on what terms. In exceptional cases, however, the landlord has the ability to apply on a ‘without notice’ basis – this involves the court hearing only from the landlord at the first hearing and deciding whether to grant an injunction based only on the case as presented by the landlord. A ‘return date’ hearing is then listed, at which the defendant gets the chance to argue that the injunction is not appropriate and should be discharged.

Earlier this year, the courts gave housing practitioners helpful guidance on the approach to be taken when applying for an ASB injunction on a without notice basis. In one particular case, a housing association sought an injunction against a tenant and his son, based mainly on allegations of ASB that had been made by two neighbours. When granting a without notice injunction, the District Judge was not aware of the tenant’s mental health condition or the fact that the tenant had made counter-accusations against the witnesses, who he believed were harassing him such that he was the victim and not the perpetrator of ASB.

When the full facts of the case came before the Judge at a subsequent hearing, the Judge summarised the established legal principles that should be followed by any social landlord (and their advocates) when bringing an application on a without notice basis:-

• It is the claimant’s duty to make full and accurate disclosure of all material facts at the without notice hearing;
• Material facts are those which it is material for the judge to know in deciding whether to grant the injunction or not.
• The evidence put before the court must not have the effect of misleading the court in any material way;
• The court must be able to rely on the claimant to present the case in a fair and even-handed manner, flagging the arguments that the defendant might have made if present at the hearing;
• The judge must have confidence in the thoroughness and objectivity of the claimant’s case; and
• The claimant must make proper enquiries before making the application, including investigating the facts underpinning its case and any potential defences available.

In the case in question, the Judge reached the following conclusions about the evidence presented at the without notice hearing:-

• To present a fair and even-handed picture, evidence relating to the tenant’s mental health, including the medical report that was in existence (which concluded that the recent deterioration in the tenant’s mental health was directly linked to his problems with his immediate neighbours and was resulting in a “persistent sense of threat”), should have been flagged to the court;
• This was particularly so given that the claimant said it was seeking the injunction on a without notice basis because of the impact that the tenant’s behaviour was having on the mental health of other residents;
• Likewise, the fact that the tenant had made counter-accusations against the two witnesses relied on by the claimant, and that the Police were investigating those counter-accusations, should also have been made clear to the Judge at the without notice stage;
• The landlord did not appear to have taken into account the fact that the tenant had been resident for over 20 years and the ASB problems were relatively recent in that context.

In relation to the approach to be taken generally by social landlords when considering seeking a without notice ASB injunction, the Judge had this to say:-

“One of the many things that housing associations have to grapple with and deal with, I have no doubt with monotonous regularity, is disputes between their residents, and they should be alert to the issue of disability, the issue of cross-allegations, trying to find where the truth lies in all of this, and acting appropriately, all of that a pretty impossible task, but when engaged in that exercise there is clearly a duty upon them to bring this to the attention of a third party whom they are asking to adjudicate on the matter”.

The Judge reached the conclusion, on balance, that it may well not have been appropriate to seek an injunction without notice based on the facts of the case. He was not convinced that “this is not one of those cases where there was a very pressing need for urgency. This had been rumbling on for some time, clearing to-ing and fro-ing, and this is an application that could have been made on notice”.

Ultimately, the Judge decided (albeit with some hesitation) to discharge the interim injunction that had been granted, and set down directions through to a full trial.

Learning points

This case is a useful reminder of what the Courts might expect when dealing with a without notice injunction application. Often, such cases are dealt with very quickly (sometimes within hours of the application being issued) and without notice injunctions are regularly granted in circumstances where the evidence is serious enough to warrant it. However, the case is a reminder that the courts will expect social landlords (i) to weigh up, so far as possible, all of the relevant factors before deciding whether to apply without notice or on notice, and (ii) to ensure that the case that is presented to the court on a without notice basis is fair, even-handed and allows the court to understand any obvious point that the defendant would be likely to make in defence of his/her position.

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